Some time ago I published an article about the case of Moore v Scenic Tours which involved a disappointed consumer taking proceedings against a cruise boat operator for compensation when the company did not ‘deliver’ the holiday experience it advertised (due to serious flooding on various rivers in Europe). One of the unusual features of the case was that the claim was brought only under the Consumer Guarantee provisions of the Australian Consumer Law (‘ACL’), and not in contract. The plaintiff was successful and, amongst other things, was awarded compensation for distress and disappointment at not receiving the holiday ‘experience’.
Scenic appealed and the NSW Court of Appeal has recently delivered a very lengthy judgment. It is well beyond the scope of an article like this to cover all of it but, relevantly, it reversed the trial Judge’s decision to award damages for distress and disappointment.
Although the reasoning is quite complex, the ultimate finding on this point was that the particular ACL provision under which the trial judge ordered damages for distress, had “picked up and applied as a surrogate Federal law, a relevant law of NSW“; and the consequence of having done so was that damages should not have been awarded. Put more simply, the ‘imported’ NSW provision had the effect of limiting the power to award damages that otherwise existed.
The relevant NSW law was the Civil Liability Act. Section 16, in substance, precludes the award of damages for non-economic loss (which include things like distress and disappointment) unless a person is assessed as exceeding a particular statutory threshold. Mr Moore had not proved he exceeded the relevant threshold; and was therefore not entitled to damages.
The litigation is ongoing – the Court of Appeal also determined that the primary Judge had awarded damages to compensate the plaintiff for the reduction in value of the services provided to him, on an incorrect basis; and the case has been returned to the primary Judge to reconsider that issue of damages: Scenic Tours Pty Ltd v Moore  NSWCA 238 (24 October 2018)